Caroline Ostrom, Minneapolis business immigration attorney, helps employers evaluate whether a position is suitable for Permanent Labor Certification (PERM) and assists with every step of the PERM process. The PERM is the first of three processes needed for an employer to sponsor an employee for a green card. We encourage you to contact us if you need legal advice regarding PERM.
Eligibility for PERM
The Immigration and Nationality Act requires generally that a foreign national may not be hired on a permanent basis unless the Secretary of Labor first certifies that there are no available, qualified, and willing United States workers for the employment position. Usually, “qualified” refers to meeting the employer’s minimum requirements. For college and university teaching positions, the labor certification may be approved if the employer shows the foreign national is the best qualified for the position (rather than showing a lack of minimally qualified U.S. workers, in other words).
Employers will also need to be able to show that they have the ability to pay the proffered wage for the position. Ostrom Law Office can assist on the front end to ensure that the company can demonstrate this through company taxes and other financial documentation.
PERM Process and Timing
The standard PERM (Labor Certification process) includes: 1) determining the minimum requirements, job duties, and wage offered for the position; 2) submitting a Prevailing Wage Determination (ETA-9141) to be certified by the Department of Labor; 3) running the required recruitment for the position; 4) evaluating and tracking the resumes received in response to the recruitment; and 5) submitting the PERM application (ETA-9089) to the Department of Labor for certification.
Due to the steps involved, the PERM process takes substantial time to complete, depending on the specific position and the current processing times at the Department of Labor. If an employer is also sponsoring the employee on an H-1B, we generally suggest starting the PERM process at the end of the employee’s fourth year in H-1B status, to try to avoid any gaps in work authorization.
Certification Recruitment Requirements and "Special Handling" for College and University Teaching Positions
The standard PERM process requires the employer to follow specific rules regarding recruitment of applicants for a permanent position. The process also requires notice of the labor certification process to other workers or a union representative, if any. Recruitment steps and notice must occur during a window of time between 180 and 30 days prior to submission of the application. Due to these rather detailed requirements, it is important to have the process mapped out in the beginning.
College and university positions involving teaching require, at a minimum, only one advertisement in a nationally circulated professional journal, as well as the notice mentioned above. Colleges or universities must file the labor certification within 18 months of selecting the candidate, if that candidate is a foreign national. Often, colleges and universities need not engage in any additional recruitment beyond that which has already occurred to select the candidate, depending on the content and placement of the prior ads. This option for colleges and universities, called “Special Handling,” is in contrast to the process for other professional positions, in which cases a fresh recruitment campaign is almost always required to meet Department of Labor requirements and timelines.
Following the recruitment process, the employer must evaluate the pool of applicants. If no suitably qualified U.S. worker applicant is identified, the employer may proceed with filing the labor certification for Department of Labor review and certification. For most labor certifications, the standard is that no willing and qualified US workers came forward who met the minimum requirements of the position. For college and university teaching positions, the standard is that the foreign employee is more qualified than US workers who applied for the position. The date that the labor certification is submitted to the Department of Labor is the employee’s “priority date” for future green card applications.
U.S. Department of Labor regulations require that employers must pay expenses in connection with preparation and filing of a labor certification. This includes advertising or other expenses for recruiting U.S. workers, as well as attorneys’ fees.
The Immigrant Petition
Once the application is certified, the employer moves forward with an immigrant petition. An approved immigrant petition is a pre-requisite for approval of the employee’s application for adjustment of status to permanent resident, or an immigrant visa (if the worker is abroad).
How Our Minneapolis Immigration Attorney Can Help
Ostrom Law Office will help employers evaluate whether a particular set of employment circumstances is suitable for the PERM process. If so, we will guide employers with respect to meeting Department of Labor requirements regarding the wage offered, and the content of required advertisements and notices. We will assist in ensuring all timelines are met, and that required documentation of the process is in place in the event of a Department of Labor audit. We will advise employers with respect to Department of Labor regulations and policies regarding evaluation of candidates. We will assist with creation of required online accounts with the Department of Labor, and draft and file applications on behalf of the employer through those accounts, handling all communication to and from Department of Labor.
Based in Minneapolis, our immigration team works with employees and companies in the Twin Cities and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your immigration matter.
